F 

814 
.25 


1921 


ARIZONA 
WATER  CODE 


BANCROFT 
LIIRARY 


BANCROFT 
LIBRARY 

-o- 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


,  * 

WATER  CODE 

OF  THE 

State  of  Arizona 

CHAPTER  164 

Laws  of  1919  --  Amended  1921 
Chapter  64 


Compiled  in  the  Office  of  the 

STATE  WATER  COMMISSIONER 

June  10,  1921 


MANUFACTURING  STATIONERS  >»c..  PHOENIX,  ARIZOK 


WATER    CODE    OF    THE    STATE    OF    ARIZONA 

CHAPTER  164 

AN  ACT 

Pertaining  to  the  Use  of  Water,  and  to  Regulate  the  Appro- 
priation of  the  Natural  Waters  of  Arizona;  Protecting 
the  Rights  of  Prior  Appropriations;  Creating  a  State 
Water  Commissioner,  Defining  and  Limiting  His  Powers 
and  Duties;  Regulating  the  Manner  of  Making  Appro- 
priations and  the  Purposes  for  Which  Water  May  be 
Appropriated;  Giving  to  the  Water  Commissioner  Con- 
trol Over  Dams,  Gates  and  Wiers;  Empowering  the  Water 
Commissioner  to  Measure  the  Flow  of  Streams,  and  to 
Investigate  Water  Resources;  Providing  for  the  Division  of 
the  State  Into  Water  Districts,  and  for  the  Distribution 
of  the  Water  to  Those  Entitled  to  its  Use ;  Providing  for  the 
Determination  of  Existing  Water  Rights,  Providing  for  the 
Method  of  Hearings  in  Contested  Appropriations  and  Rules 
for  Determining  a  Preference  as  Between  Conflicting  Ap- 
propriations; And  Providing  for  Public  Hearings,  Limiting 
the  Value  to  be  Placed  on  Water  Rights  in  Certain  Cases; 
Providing  for  Appeals  From  Decisions  of  the  Water  Com- 
missioner; Defining  Certain  Duties  of  Superior  Courts,  the 
Attorney  General  and  County  Officers;  Providing  the  Man- 
ner in  Which  Reservoirs  May  be  Located,  and  Defining  and 
Limiting  the  Purposes  for  Which  They  May  be  Located; 
Providing  Penalties  for  the  Violation  of  the  Provisions  of 
This  Act,  and  Giving  Power  to  Enforce  Decrees  and  Find- 
ings; Appropriating  Moneys  for  the  Purposes  of  This  Act; 
And  Repealing  all  Acts  and  Parts  of  Acts  in  Conflict  With 
the  Provisions  of  This  Act. 

Be  it  Enacted  by  the  Legislature  of  the  State  of  Arizona : 

PUBLIC  WATERS 

Section  1.  The  water  of  all  sources  of  supply,  flowing  in 
natural  streams,  canyons,  ravines  or  other  natural  channels,  or 
in  definite  underground  channels,  whether  perennial,  intermittent 
or  flood  waters,  waste  or  surplus  water,  and  of  lakes,  ponds  and 
springs,  on  the  surface,  belongs  to  the  public,  and  is  subject  to 
beneficial  use  as  herein  provided.  Beneficial  use  shall  be  the 
basis  and  the  measure  and  the  limit  to  the  use  of  water  in  the 
State,  and  whenever  hereafter  the  owner  of  a  perfected  and 
developed  right  shall  cease  or  fail  to  use  the  water  appropriated 
for  a  period  of  five  (5)  successive  years  the  right  to  use  shall 
thereupon  cease  and  revert  to  the  public  and  become  again 


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2  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

subject  to  appropriation  in  the  manner  herein  provided.  But 
nothing  herein  contained  shall  be  so  construed  as  to  take  away 
or  impair  the  vested  rights  which  any  person,  firm,  corporation 
or  association  may  have  to  any  water  at  the  time  of  passage  of 
this  act.  [As  amended  1921.] 

Appointment- 
Section  2.  The  office  of  State  Water  Commissioner  is  hereby 
created.  The  State  Water  Commissioner  who  shall  hereafter  in 
this  act  be  designated  and  referred  to  as  the  Commissioner,  shall 
be  appointed  by  the  Governor  to  hold  office  for  a  period  of  six 
years  and  until  his  successor  is  appointed  and  qualified.  He 
may  be  removed  by  the  governor  for  cause.  He  shall  be  familiar 
with  water  law,  with  hydraulics  and  with  irrigation  practice. 
He  shall  have  office  quarters  at  the  State  Capitol.  The  Com- 
missioner shall  have  general  control  and  supervision  of  the  waters 
of  the  State  of  Arizona  and  of  the  appropriation  and  of  the  dis- 
tribution thereof,  excepting  such,  distribution  as  is  hereinafter 
reserved  to  Water  Commissioners  appointed  by  the  courts  under 
existing  decrees.  He  shall  receive  a  salary  of  Four  Thousand 
Dollars  ($4,000.00)  and  his  traveling  expenses  when  away  from 
his  office,  to  be  paid  from  the  State  Water  Fund. 

Investigation,  Etc.— 

Section  3.  In  order  to  promote  the  best  and  fullest  use  of 
the  waters  of  the  State  of  Arizona,  the  Commissioner  is  hereby 
authorized  and  empowered  to  make  such  surveys,  investigations 
and  compilations  of  the  water  resources  and  their  development  in 
the  State  as  shall  in  his  judgment  be  for  the  best  interests  of  the 
State  and  to  make  co-operative  arrangements  for  such  purposes 
with  the  National  Government;  and  the  Commissioner  is  hereby 
directed  upon  the  passage  of  this  act  to  at  once  begin  the  estab- 
lishment of  a  permanent,  safe  and  convenient  public  depository 
in  the  State  Capitol  Building  for  existing  and  future  records  of 
stream  flow  and  all  other  data  relating  to  the  water  resources  of 
the  State. 

Rules  and  Regulations- 
Section  4.  The  Commissioner  is  authorized  subject  to  the 
provisions  herein  contained  to  formulate  and  pass  such  necessary 
rules  and  regulations  concerning  the  appropriation  and  distribu- 
tion of  the  waters  of  the  State  as  he  may  deem  advisable,  and  is 
further  authorized  to  employ  such  expert  technical  and  clerical 
assistants  and  labor  and  upon  such  terms  as  may  be  deemed 
necessary  and  proper,  not  exceeding  the  funds  appropriated  for 
these  purposes.  The  Commissioner  shall  have  an  official  seal 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  3 

bearing  the  words,  "Arizona  State  Water  Commissioner"  which 
shall  be  affixed  to  papers,  maps,  plans  and  other  instruments 
issued  from  his  office. 

Applications- 
Section  5.  Any  person,  association  or  corporation,  irrigation 
district,  municipality  or  the  State  of  Arizona  or  the  United 
States  of  America  hereafter  intending  to  acquire  the  right  to  the 
beneficial  use  of  any  waters  shall,  before  commencing  the  con- 
struction, enlargement  or  extension  of  any  dam,  ditch,  canal  or 
other  distributing  or  controlling  works,  or  performing  any  work 
in  connection  with  said  construction,  or  proposed  appropriation, 
make  an  application  to  the  Commissioner  for  a  permit  to  make 
such  appropriation.  [As  amended  1921.] 
Data  Required- 
Section  6.  Each  application  for  a  permit  to  appropriate 
water  shall  set  forth  the  name  and  postoffice  address  of  the 
applicant,  the  source  of  water  supply,  the  nature  and  amount  of 
the  proposed  use,  the  location,  point  of  diversion  and  description 
of  the  proposed  ditch,  canal,  or  other  work;  the  time  within  which 
it  is  proposed  to  begin  construction,  the  time  required  for  the 
completion  of  the  construction,  and  the  time  for  the  complete 
application  of  the  water  to  the  proposed  use.  If  for  agricultural 
purposes,  it  shall  give  the  legal  subdivisions  of  the  land  and  the 
acreage  to  be  irrigated  as  near  as  may  be.  If  for  power  purposes, 
it  shall  give  the  nature  of  the  works  by  means  of  which  the 
power  is  to  be  developed,  the  pressure  head  and  amount  of  water 
to  be  utilized,  the  points  of  diversion  and  release  of  the  water, 
and  the  uses  to  which  the  power  is  to  be  applied.  If  for  the 
construction  of  a  reservoir,  it  shall  give  the  dimensions  and 
description  of  dam,  the  capacity  of  the  reservoir  for  each  foot 
in  depth,  the  description  of  the  land  to  be  submerged,  and  the 
uses  to  be  made  of  the  impounded  waters.  If  for  municipal 
water  supply,  it  shall  give  the  present  population  to  be  served, 
and,  as  near  as  may  be  the  future  requirements  of  the  city.  If 
for  mining  purposes  it  shall  give  the  location  and  the  nature  of 
the  mines  to  be  served,  and  the  methods  of  supplying  and  utilizing 
the  waters.  All  applications  shall  be  accompanied  by  such  maps 
and  drawings,  and  such  other  data  as  may  hereafter  be  prescribed 
by  the  Commissioner,  and  such  accompanying  data  shall  be  con- 
sidered as  a  part  of  the  application.  [As  amended  1921.] 
Acceptance  Record- 
Section  7.  Upon  receipt  of  an  application  it  shall  be  the  duty 
of  the  Commissioner  to  make  an  endorsement  thereon  of  the  date 
of  its  receipt  and  to  keep  a  record  of  the  same.  If  upon  exam- 


4  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

ination  the  application  is  found  to  be  defective  it  shall  be  returned 
for  correction  or  completion,  and  the  date  of  and  reasons  for  the 
return  thereof  shall  be  endorsed  thereon  and  made  of  record  in  his 
office.  No  application  shall  lose  its  priority  of  filing  on  account 
of  such  defects,  provided  acceptable  maps  and  drawings  and 
data  are  filed  in  the  office  of  the  Commissioner  within  sixty  days 
from  the  date  of  said  return  to  the  applicant.  All  applications 
which  shall  comply  with  the  provisions  of  this  act  shall  be  re- 
corded in  a  suitable  book  kept  for  that  purpose,  and  it  shall  be 
the  duty  of  the  Commissioner  to  approve  all  applications  made 
in  proper  form  which  contemplate  the  application  of  water  to  a 
beneficial  use,  when  the  provisions  of  this  act  are  complied  with ; 
but  when  the  proposed  use  conflicts  with  vested  rights,  or  is  a 
menace  to  the  safety  or  against  the  interests  and  welfare  of  the 
public,  the  application  shall  be  rejected. 

Before  approving  or  rejecting  the  application  the  Commis- 
sioner may  require  such  additional  information  as  will  enable 
him  to  properly  guard  the  public  interest,  and  may,  in  case  of 
applications  proposing  to  divert  more  than  ten  cubic  feet  of 
water  per  second,  require  a  statement  of  the  following  facts: 
In  case  of  incorporated  companies  he  may  require  the  submission 
of  the  articles  of  incorporation,  the  names  and  the  places  of 
residence  of  directors  and  officers,  and  the  amount  of  its  author- 
ized and  its  paid-up  capital.  If  the  applicant  is  not  an  incor- 
porated company,  he  may  require  a  statement  as  to  the  name 
or  names  of  the  party  or  parties  proposing  to  construct  the  work, 
and  a  showing  of  facts  necessary  to  enable  him  to  determine 
whether  or  not  they  have  the  financial  ability  to  carry  out  the 
proposed  .work.  He  may  also  require  of  the  applicant  additional 
data  as  to  the  unappropriated  water  in  the  source  of  supply  as 
will  enable  him  to  determine  whether  the  proposed  diversion  will 
conflict  with  vested  rights. 
Relative  Values — 

An  application  may  be  approved  for  a  less  amount  of  water 
than  that  applied  for,  if  there  exists  substantial  reasons  therefor, 
and  in  any  event  shall  not  be  approved  for  more  water  than  can 
be  applied  to  a  beneficial  use.  Applications  for  municipal  water 
supplies  may  be  approved  to  the  exclusion  of  all  subsequent 
appropriations,  if  the  exigencies  of  the  case  demand,  upon  con- 
sideration and  order  by  the  Commissioner.  As  between  two  or 
more  conflicting  applications  under  consideration  of  the  Com- 
missioner at  the  same  time  for  the  use  of  any  water  from  a  given 
stream,  lake,  or  other  source  of  water  supply  where  the  capacity 
of  the  supply  is  not  sufficient  for  all  applications  and  for  which 
no  permit  has  been  granted,  preference  shall  be  given  by  the 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  5 

Commissioner  according  to  the  relative  values  to  the  public  of 
the  proposed  uses  to  which  the  water  is  supplied.  The  said 
relative  values  to  the  public  shall  be  taken  by  the  Commissioner 
for  this  purpose  in  the  following  order  of  importance : 

First :     Domestic  and  municipal  uses. 

Domestic  use  shall  be  construed  to  include  gardens  not  ex- 
ceeding one-half  acre  to  each  family. 

Second :     Irrigation  and  stock  watering. 
Third:     Water  power  and  mining  uses. 
[As  amended  1921.] 
Approval- 
Section  8.     The  approval  or  rejection  of  an  application  shall 
be  endorsed  thereon,  and  a  record  made  of  such  endorsement  in 
the  Commissioner's  office.     The  application  so  endorsed  shall  be 
returned  immediately  to  the  applicant  in  person  or  by  mail. 
If  approved,  the  applicant  shall  be  authorized,  on  receipt  thereof, 
to  proceed  with  the  construction  of  the  necessary  works  and  to 
take  all  steps  required  to  apply  the  water  to  a  beneficial  use,  and 
to  perfect  the   proposed  appropriation.     If  the  application  is 
refused,  the  applicant  shall  take  no  steps  toward  the  construction 
of  the  proposed  work  or  the  diversion  and  the  use  of  water  so 
long  as  such  refusal  shall  continue  in  force. 

Assignment- 
Section  9.  Any  permit  to  appropriate  water  may  be  assigned, 
subject  to  the  conditions  of  the  permit,  but  no  such  assignment 
shall  be  binding,  except  upon  the  parties  thereto,  unless  approved 
by  and  filed  for  record  with  the  Commissioner;  and  every  per- 
mittee, under  the  provisions  of  this  act,  if  he  accepts  such  permit, 
shall  accept  the  same  under  the  conditions  precedent,  that  no 
value  whatsoever  in  excess  of  the  actual  amount  paid  to  the 
State  therefor  shall  at  any  time  be  assigned  to  or  claimed  for  any 
permit  granted  under  the  provisions  of  this  act,  or  for  any  rights 
granted  or  acquired  under  the  provisions  of  this  act;  in  respect 
to  the  regulation  by  any  competent  public  authority  of  the 
services  to  be  rendered  by  any  permittee,  his  heirs,  successors  or 
assigns;  or  in  respect  to  any  valuation  for  purposes  of  sale  to,  or 
purchase  whether  through  condemnation  proceedings  or  other- 
wise by,  the  State  or  any  city,  county,  municipal  water  district, 
irrigation  district,  or  any  political  subdivision  of  the  State,  of 
the  rights  and  property  of  any  permittee,  or  the  possessor  of 
any  rights  granted  or  acquired  under  the  provisions  of  this  act. 


6  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

Construction- 
Section  10.  Actual  construction  work,  except  under  appli- 
cations by  municipal  corporations  for  municipal  uses  or  purposes 
shall  begin  within  one  year  from  the  date  of  approval  of  the 
application,  and  the  construction  on  any  proposed  irrigation  or 
other  work  shall  thereafter  be  prosecuted  with  reasonable  dili- 
gence and  be  completed  within  a  reasonable  time,  as  fixed  in  the 
permit,  not  to  exceed  five  years  from  the  date  of  such  approval. 
The  commissioner  shall,  for  a  good  cause  shown,  order  and  allow 
an  extension  of  time,  including  an  extension  beyond  the  five 
year  limitation,  and  in  determining  such  extension,  shall  give  due 
weight  to  the  magnitude,  physical  difficulties  and  cost  of  the 
proposed  work. 

Appeal- 
Section  11.  An  applicant  may  appeal  to  the  court  herein- 
after specified  for  relief,  which  may  modify  the  decisions  of  the 
Commissioner  if  it  shall  appear  that  he  has  abused  the  authority 
reposed  in  him  by  law.  Such  appeal  shall  be  taken  within  sixty 
days  from  the  date  of  such  decision  by  the  Commissioner  and 
shall  be  perfected  when  the  applicant  shall  have  filed  with  the 
court  a  copy  of  the  order  appealed  from,  together  with  a  petition 
setting  forth  the  appellant's  reason  for  appeal,  and  such  appeal 
shall  be  heard  and  determined  upon  such  competent  proof  as 
shall  be  adduced  by  the  applicant,  and  such  like  proofs  as  shall 
be  adduced  by  the  commissioner. 

Reservoirs- 
Section  12.  All  applications  for  reservoir  permits  shall  be 
subject  to  the  provisions  of  the  foregoing  sections  except  that 
an  enumeration  of  any  lands  proposed  to  be  irrigated  under  this 
act  shall  not  be  required  in  the  primary  permit.  But  the  party 
or  parties  proposing  to  apply  to  a  beneficial  use  the  water  stored 
in  any  such  reservoir  shall  file  an  application  for  permit,  to  be 
known  herein  as  the  secondary  permit,  in  compliance  with  the 
provisions  of  the  foregoing  sections.  Said  application  shall  refer 
to  such  reservoir  for  a  supply  of  water  and  shall  show  by  docu- 
mentary evidence  that  an  agreement  has  been  entered  into  with 
the  owners  of  the  reservoir  for  a  permanent  and  sufficient  interest 
in  said  reservoir  to  impound  enough  water  for  the  purposes  set 
forth  in  said  application.  When  beneficial  use  has  been  com- 
pleted and  perfected  under  the  secondary  permit,  the  Commis- 
sioner shall  take  the  proof  of  the  water  user  under  such  permit 
and  the  final  certificate  of  appropriation  shall  refer  to  both  the 
ditch  described  in  the  secondary  permit  and  the  reservoir  de- 
scribed in  the  primary  permit.  If  at  any  time  it  shall  appear  to 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  7 

the  Commissioner  after  a  hearing  of  the  parties  interested  and 
on  investigation  that  the  holder  of  the  said  appropriation  will 
not  or  cannot  within  a  reasonable  period  develop  the  streams 
then  the  Commissioner  in  his  discretion  may  permit  the  joint 
occupancy  and  use  with  the  holder  of  the  appropriation  by  any 
and  all  applicants  qualified  under  the  provisions  of  this  act  and 
applying  for  such  joint  occupancy  to  the  extent  deemed  advisable 
by  the  Commissioner  provided  that  the  applicant  or  applicants 
shall  be  required  to  pay  to  the  party  owning  such  works  a  pro-rata 
portion  of  the  total  cost  of  the  old  and  the  new  works,  such  pro- 
rata  cost  to  be  based  on  the  proportion  of  water  used  by  the 
original  and  the  additional  users  of  such  works. 

Certificates- 
Section  13.  Upon  it  being  made  to  appear  to  the  satisfaction 
of  the  Commissioner  that  any  appropriation  has  been  perfected 
in  accordance  with  the  provisions  of  this  act,  it  shall  be  his  duty 
to  issue  to  the  applicant  a  certificate  of  the  same  character  as 
that  described  in  Section  27.  Said  certificate  shall  be  recorded 
and  transmitted  to  the  applicant  as  provided  in  said  section. 
Certificates  issued  for  rights  to  the  use  of  water  for  power  develop- 
ment acquired  under  the  provisions  of  this  act  shall  limit  the  right 
or  franchise  to  a  period  of  forty  years  from  the  date  of  application, 
subject  to  a  preference  right  of  renewal  under  the  laws  existing 
at  the  date  of  expiration  of  such  franchise  or  right. 
Priority — 

Section  14.  The  right  acquired  by  such  appropriation  shall 
date  from  the  filing  of  the  application  in  the  office  of  the  Com- 
missioner. 

Reciprocity  Between  States- 
Section  15.  No  permit  for  the  appropriation  of  water  shall 
be  denied  because  of  the  fact  that  the  point  of  diversion  described 
in  the  application  for  such  permit,  or  any  portion  of  the  works 
in  such  application  described  and  to  be  constructed  for  the 
purpose  of  storing,  conserving,  diverting  or  distributing  such 
water,  or  the  place  of  intended  use  or  the  lands  to  be  irrigated 
by  means  of  such  water,  or  any  part  thereof,  may  be  situated  in 
some  other  State;  but  in  all  such  cases  where  either  the  point 
of  diversion  or  any  of  such  works  or  the  place  of  intended  use, 
or  the  lands,  or  part  of  the  lands,  to  be  irrigated  by  means  of 
such  water,  are  situated  within  the  State  of  Arizona,  the  permit 
shall  issue  as  in  other  cases;  provided,  however,  that  the  Com- 
missioner may  in  his  discretion,  decline  to  issue  a  permit  where 
the  point  of  diversion  described  in  the  application  is  within  the 
State  of  Arizona  but  the  place  of  beneficial  use  in  some  other 


8  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

State,  unless  under  the  laws  of  such  State  water  may  be  lawfully 
diverted  within  such  State  for  beneficial  use  in  the  State  of 
Arizona. 

Determination — 

Section  16.  Upon  the  initiative  of  the  Commissioner  or  upon 
a  petition  to  him  signed  by  one  or  more  water  users  upon  any 
stream,  requesting  the  determination  of  the  relative  rights  of  the 
various  claimants  to  the  waters  of  that  stream,  it  shall  be  his 
duty,  if,  upon  investigation  he  finds  the  facts  and  conditions  are 
such  as  to  justify,  to  make  a  determination  of  the  said  rights, 
fixing  a  time  for  beginning  the  taking  of  testimony  and  the 
making  of  such  examination  as  will  enable  him  to  determine  the 
rights  of  the  various  claimants.  In  case  suit  has  been  brought 
in  any  State  Court  for  the  determination  of  rights  to  the  use  of 
water,  the  case  may,  in  the  discretion  of  the  Court  be  transferred 
to  the  Commissioner  for  determination  as  in  this  act  provided. 
But  in  such  case,  no  proceedings  shall  be  had  by  the  Commis- 
sioner until  such  transfer  is  made.  Provided,  that  in  the  deter- 
mination of  water  rights  on  any  water  shed  or  any  part  thereof 
or  upon  any  other  source  of  supply  where  the  dates  of  appropria- 
tion of  water  on  all  or  any  part  of  such  water  shed  shall  have  been 
determined  in  a  judgment  or  decree  of  any  court  in  any  action 
or  proceeding  concluded  prior  to  or  pending  at  the  date  of  the 
taking  effect  of  this  act,  the  Commissioner  shall  accept  such 
dates  of  appropriation  as  found  or  fixed  in  such  decree  or  judg- 
ment as  correct  arid  nothing  herein  shall  be  held  or  construed  to 
require  the  owner  of  any  appropriation  which  shall  have  been 
adjudicated  in  such  decree  or  judgment,  to  appear  in  or  for  any 
purpose  take  notice  of,  any  of  the  proceedings,  investigations  or 
hearings  authorized  by  this  act.  Abandonment  or  other  loss  of 
any  right  of  any  appropriation  awarded  in  any  such  decree  may 
be  affirmatively  shown,  but  nothing  in  this  act  shall  be  so  con- 
strued as  to  revive  any  rights  to  the  used  water  which  have  been 
lost  by  abandonment,  forfeiture  or  non-user. 

Newspaper  Notices- 
Section  17.  The  Commissioner  shall  prepare  a  notice  setting 
forth  a  date  when  he  will  begin  an  investigation  of  the  flow  of  the 
stream  and  of  the  ditches  diverting  water  therefrom,  and  the  land 
irrigated  thereby;  such  notice  shall  set  forth  that  all  claimants  to 
rights  in  the  water  of  said  stream  will  be  required,  as  in  this  act 
provided,  to  make  proof  of  their  claims  when  called  upon  by  the 
Commissioner,  which  notice  shall  be  published  in  two  issues  of 
one  or  more  newspapers  having  general  circulation  in  the  counties 
in  which  such  stream  is  situated.  [As  amended  1921.] 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  9 

Stream  Examination- 
Section  18.  It  shall  be  the  duty  of  the  Commissioner  to  make 
an  examination  of  said  stream  and  the  works  diverting  water 
therefrom,  said  examination  to  include  a  study  of  the  discharge 
of  said  stream  from  existing  data  and  from  additional  measure- 
ments and  of  the  carrying  capacity  to  the  various  ditches  and 
canals,  examination  of  the  irrigated  lands,  and  a  substantially 
accurate  measurement  of  the  lands  irrigated  or  susceptible  of 
irrigation  from  the  various  ditches  and  canals;  and  to  take  such 
other  steps  and  gather  such  other  data  and  information  as  may 
be  essential  to  the  proper  understanding  of  the  relative  rights  of 
the  parties  interested;  which  said  investigations  shall  be  reduced 
to  writing  and  made  a  matter  of  record  in  this  office,  and  such 
records  and  data  shall  be  made  conveniently  accessible  to  the 
public.  It  shall  be  the  duty  of  the  Commissioner  to  make  or 
cause  to  be  made  a  map  or  plat  on  a  scale  of  not  less  than  one 
inch  to  the  mile,  showing  with  substantial  accuracy  the  course  of 
said  stream,  the  location  of  such  ditch  or  canal  diverting  water 
therefrom,  and  the  legal  subdivisions  of  lands  which  have  been 
irrigated  or  which  are  susceptible  of  irrigation  from  the  ditches 
and  canals  already  constructed.  [As  amended  1921.] 

Notice  to  Claimants- 
Section  19.  During  the  said  investigation  the  Commissioner 
shall  send  by  registered  mail  to  each  person,  firm,  corporation, 
irrigation  district  or  municipality  hereafter  designated  as  claimant 
claiming  the  right  to  the  use  of  any  of  the  waters  of  said  stream, 
insofar  as  such  claimants  can  reasonably  be  ascertained,  a  notice 
setting  forth  the  date  when  the  Commissioner  will  begin  the  tak- 
ing of  testimony  as  to  the  rights  to  the  waters  of  said  stream,  or 
source  of  supply,  said  notice  must  be  mailed  at  least  thirty  days 
prior  to  the  date  set  therein  for  the  taking  of  testimony,  and  shall 
also  be  published  in  two  issues  of  one  or  more  newspapers  having 
general  circulation  in  the  counties  in  which  such  stream  is  situ- 
ated. The  Commissioner  shall  have  the  power  to  adjourn  the 
taking  of  testimony  from  time  to  time  and  from  place  to  place  to 
suit  the  convenience  of  those  interested.  [As  amended  1921.] 

Statement  by  Claimant — 

Section  20.  The  commissioner  shall,  in  addition,  enclose  with 
said  notice  a  blank  form  on  which  said  claimant  or  owner  shall 
present  in  writing  all  the  particulars  necessary  for  the  deter- 
mination of  his  right  to  the  waters  of  the  stream  to  which  h°  lays 
claim,  the  said  statement  to  include  the  following :  The  name  and 
postoffice  address  of  the  claimant;  the  nature  of  the  right  or  use 
on  which  the  claim  is  based ;  the  time  of  initiation  of  such  (right 


10  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

and)  or  the  commencement  of  such  use,  and  if  distributing  works 
are  required;  the  date  of  beginning  of  construction;  the  date  when 
completed;  date  of  beginning  and  completion  of  enlargements; 
the  dimensions  of  the  ditch  as  originally  constructed  and  as 
enlarged;  the  date  when  water  was  first  used  for  irrigation  or 
other  beneficial  purposes,  and  if  used  for  irrigation,  the  amount 
of  land  reclaimed  the  first  year,  the  amount  in  subsequent  years, 
with  the  date  of  reclamation,  and  the  amount  and  general  location 
of  the  land  such  ditch  is  intended  to  irrigate ;  the  character  of  the 
soil  and  the  kind  of  crops  cultivated  and  such  other  facts  as  will 
show  a  compliance  with  the  law  in  acquiring  the  right.  [As 
amended  1921.] 

Oath  of  Claimant- 
Section  21.  Each  claimant  or  owner  shall  be  required  to 
certify  to  his  statements  under  oath  'and  the  Commissioner  and 
those  deputized  by  him  are  hereby  authorized  to  administer  such 
oaths,  which  shall  be  done  without  charge,  as  also  shall  be  the 
furnishing  of  blank  forms  for  said  statement.  [As  amended  1921.] 

Fees — 

Section  22.  At  the  time  of  the  submission  of  proof  of  appro- 
priation, or  at  the  time  of  the  taking  of  testimony  for  the  deter- 
mination of  rights  to  water,  the  Commissioner  shall  collect  from 
each  of  the  claimants  or  owners  a  fee  of  two  dollars  ($2.00)  for 
the  purpose  of  recording  the  water  right  certificate,  when  issued, 
in  the  office  of  the  county  recorder  together  with  the  additional 
fee  of  twelve  cents  for  each  acre  of  irrigated  lands  up  to  and 
including  one  hundred  acres,  and  ten  cents  per  acre  for  each  acre 
in  excess  of  one  hundred  acres;  also  twenty-five  cents  for  each 
theoretical  horsepower  up  to  and  including  one  hundred  horse- 
power, and  fifteen  cents  for  each  horsepower  in  excess  of  one 
hundred  up  to  and  including  one  thousand  horsepower,  and  five 
cents  for  each  horsepower  in  excess  of  one  thousand  horsepower 
up  to  and  including  two  thousand  horsepower,  and  two  cents 
for  each  horsepower  in  excess  of  two  thousand  horsepower  as  set 
forth  in  such  proof,  the  minimum  fee,  however,  for  any  claimant 
or  owner  in  such  cases  to  be  $2.50;  also  a  fee  of  $5.00  for  any 
other  character  of  claim  to  water.  All  fees  collected  by  the  Com- 
missioner shall  be  paid  into  the  State  Treasury  to  become  a  part 
of  a  fund  to  be  known  as  the  State  Water  Fund;  which  fund  shall 
be  kept  separately  from  all  other  state  funds  by  the  State  Treas- 
urer and  used  by  him  to  the  extent  of  its  resources  and  in  prefer- 
ence to  the  use  of  any  other  appropriation  of  the  State  funds,  for 
the  payment  of  the  duly  authorized  expenses  of  the  Commis- 
sioner. [As  amended  1921.] 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  11 

Inspection- 
Section  23.  Upon  the  completion  of  the  taking  of  testimony 
the  Commissioner  shall  at  once  give  notice  by  registered  mail  to 
the  various  claimants  that  at  a  time  and  place  named  in  the 
notice  not  less  than  ten  days  thereafter,  all  of  said  evidence  shall 
he  open  to  inspection  of  the  various  claimants  or  owners,  and  said 
Commissioner  shall  keep  said  evidence  open  to  inspection  at  said 
places  not  less  than  thirty  days,  and  such  other  time  as  fixed  in 
the  notice.  [As  amended  1921.] 

Contests- 
Section  24.  Should  any  person,  corporation  or  association 
owning  or  operating  any  irrigation  works,  or  claiming  any  interest 
in  the  stream  or  streams  involved  in  the  determination,  desire  to 
contest  any  of  the  rights  of  the  persons,  corporations  or  associa- 
tions who  have  submitted  their  evidence  to  the  Commissioner  as 
aforesaid,  such  persons,  corporations  or  associations  shall  within 
five  days  after  the  expiration  of  the  period  as  fixed  in  the  notice 
for  public  inspection,  notify  the  Commissioner  in  writing,  stating 
with  reasonable  certainty  the  grounds  of  their  proposed  contest, 
which  statement  shall  be  verified  by  the  affidavit  of  the  con- 
testant, his  agent  or  attorney,  and  the  said  Commissioner  shall 
notify  the  said  contestant  and  thf  person,  corporation  or  associa- 
tion, whose  rights  are  contested,  to  appear  before  him  at  such  con- 
venient place  as  he  shall  designate  in  said  notice.  [As  amended 
1921.] 

Hearing  Contest — 

Section  25.  The  Water  Commissioner  shall  fix  the  time  and 
place  for  the  hearing  of  said  contest,  which  date  shall  be  not  less 
than  30  days  nor  more  than  60  days  from  the  date  the  notice  is 
served  on  the  party,  association  or  corporation,  which  notice 
may  be  served  either  by  registered  mail  addressed  to  the  claim- 
ants to  their  postoffice  addresses  as  stated  in  the  statement  and 
proof  of  claimant,  or  personally  and  returns  made  thereof  in  the 
same  manner  as  summons  are  served  in  civil  actions  in  the  Su- 
perior Courts  of  this  state.  The  Commissioner  shall  have  power 
to  adjourn  hearings  from  time  to  time  upon  reasonable  notice  to 
all  the  parties  interested,  and  to  issue  subpoenas  and  compel  the 
attendance  of  witnesses  to  testify  upon  such  hearings,  which 
shall  be  served  in  the  same  manner  as  subpoenas  issued  out  of. 
the  Superior  Courts  of  the  state,  and  shall  have  the  power  to 
compel  such  witnesses  so  subpoenaed  to  testify  or  give  evidence 
in  said  matter,  and  shall  have  the  power  to  order  the  taking  of 
depositions  and  to  issue  commissions  therefor  in  such  manner  as 
he  may  provide  by  rule,  and  said  witnesses  shall  receive  fees.  as. 


12  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

in  civil  cases,  the  costs  to  be  taxed  in  the  same  manner  as  are  the 
costs  in  suits  in  equity.  The  evidence  in  such  proceedings  shall 
be  confined  to  the  subjects  enumerated  in  the  notice  and  state- 
ment of  contest.  [As  amended  1921.] 

Order  of  Determination- 
Section  26.  As  soon  as  practicable  after  the  compilation  of 
said  data  and  the  filing  of  said  evidence  in  the  office  of  the 
Commissioner  he  shall  make  and  cause  to  be  entered  of  record 
in  his  office,  findings  of  fact  and  an  order  of  determination  deter- 
mining and  establishing  the  several  rights  to  the  waters  of  said 
stream.  The  original  evidence  filed  with  the  Commissioner  and 
certified  copies  of  the  observations  and  measurements  and  maps 
of  record  in  his  office,  in  connection  with  such  determination, 
together  with  a  copy  of  the  order  of  determination  and  findings 
of  the  Commissioner,  as  the  same  appears  of  record  in  his  office, 
shall  be  certified  to  and  filed  with  the  clerk  of  the  Superior  Court 
in  the  county  in  which  reside  the  greatest  number  of  water  users 
whose  rights  are  determined  by  such  order  of  determination;  and 
such  court,  subject  to  the  provisions  of  law  for  change  of  venue 
and  change  of  judge,  shall  be  the  court  in  which  determination 
of  the  water  rights  shall  be  made,  and  is  referred  to  in  this  act 
as  the  court.  It  shall  become  the  duty  of  the  judge  or  judges  of 
said  court  to  hear  the  determination  and  to  enter  a  decision  and 
decree  and  all  expenses  of  the  court  in  connection  therewith  not 
chargeable  as  costs  shall  be  paid  out  of  the  State  Water  Fund. 
A  certified  copy  of  such  order  of  determination  and  findings  shall 
be  filed  in  every  county  in  which  such  stream,  or  any  portion 
of  a  tributary,  is  situated  with  the  county  recorder.  Upon  the 
filing  of  such  evidence  and  order  with  the  Court  the  Commissioner 
shall  procure  an  order  from  said  Court  or  any  judge  thereof, 
fixing  the  time  at  which  the  determination  shall  be  heard  in  said 
court,  which  hearing  shall  be  at  least  forty  days  subsequent  to 
the  date  of  such  order.  The  clerk  of  said  court  shall,  upon  the 
making  of  such  order,  forthwith  deliver  a  certified  copy  thereof, 
to  the  Commissioner  and  said  Commissioner  shall  immediately 
upon  receipt  thereof  notify  each  claimant  or  owner  who  has  ap- 
peared in  the  proceeding,  of  the  time  and  place  for  such  hearing. 
Service  of  such  notice  shall  be  deemed  complete  upon  depositing 
such  notice  in  the  postoffice  as  registered  mail,  addressed  to  such 
claimant  or  owner  at  his  postoffice  address,  as  set  forth  in  his 
proof,  theretofore  filed  in  the  proceedings.  Proof  of  such  service 
shall  be  made  and  filed  with  the  Court  by  the  Commissioner  as 
soon  as  possible  after  the  mailing  of  such  notices.  The  deter- 
mination of  the  Commissioner  shall  be  in  full  force  and  effect 
from  the  date  of  its  entry  in  the  records  of  his  office. 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  13 

Filing  Exceptions  to  Order- 
Section  27.  From  and  after  the  filing  of  the  evidence  and 
order  of  determination  in  the  Court,  the  proceedings  shall  be  as 
near  as  may  be  like  those  in  a  suit  in  equity,  except  that  any 
proceedings,  including  the  entry  of  a  decree,  may  be  had  in 
vacation  with  the  same  force  and  effect  as  in  term  time.  At 
any  time  prior  to  the  hearing  provided  for,  any  party,  or  parties 
jointly  interested,  may  file  exceptions  in  writing  to  such  findings 
and  order  of  determination,  or  any  part  or  parts  thereof,  which 
exceptions  shall  state  with  a  reasonable  degree  of  certainty  the 
grounds  of  the  exceptions  and  shall  specify  the  particular  para- 
graphs or  parts  of  such  findings  and  order  excepted  to.  A  copy 
of  such  exceptions,  verified  by  such  exceptor,  or  certified  to  by 
his  attorney,  shall  be  served  upon  such  claimant,  who  was  an 
adverse  party  to  any  contest  or  contests  wherein  such  exceptor 
was  party  in  the  proceedings  prior  to  such  hearing.  Such  service 
shall  be  made  by  the  exceptor  or  his  attorney  upon  each  of  such 
adverse  parties  in  person,  or  upon  the  attorney  of  such  party 
if  he  has  appeared  by  attorney,  or  upon  his  agent,  and  if  such 
adverse  party  is  a  nonresident  of  the  State,  such  service  may  be 
made  by  mailing  such  copy  to  such  adverse  party  by  registered 
mail,  addressed  to  his  place  of  residence,  as  set  forth  in  his  proof 
filed  in  the  proceedings.  If  no  exceptions  are  filed,  the  Court 
shall  on  the  day  set  for  the  hearing  enter  a  decree  affirming  the 
determination  of  the  Commissioner.  If  exceptions  are  filed  upon 
the  day  set  for  the  hearing  the  Court  shall  fix  a  time  not  less 
than  thirty  days  (30)  thereafter,  unless  for  good  cause  shown 
such  time  be  extended  by  the  Court,  at  which  time  a  hearing 
will  be  had  upon  such  exceptions.  All  parties  may  be  heard  upon 
the  consideration  of  the  exceptions,  and  the  Commissioner  may 
appear  on  behalf  of  the  State  either  in  person  or  by  the  Attorney 
General.  The  Court  may,  if  necessary,  remand  the  case  to  the 
Commissioner  for  such  further  testimony  as  it  may  direct,  and 
upon  the  completion  of  such  testimony,  said  Commissioner  may 
be  required  to  make  a  further  order  of  determination.  After  final 
hearing  the  Court  shall  enter  a  decree  affirming  or  modifying 
the  order  of  the  Commissioner  and  may  assess  such  costs  as  it 
may  deem  just.  The  clerk  of  the  Court,  immediately  upon  the 
entry  of  any  decree  by  the  said  Court  shall  transmit  a  certified 
copy  of  said  decree  to  the  Commissioner,  who  shall  immediately 
enter  the  same  upon  the  record  of  his  office. 

Order  Pending- 
Section  28.     During  the  time  the  hearing  of  the  order  of  the 
Commissioner  is  pending  in  the  Court,  and  until  a  certified  copy 


14  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

of  the  judgment,  order  or  decree  of  the  Court  is  transmitted  to 
the  Commissioner,  the  division  of  water  from  the  stream  involved 
in  such  appeal  shall  be  made  in  accordance  with  the  order  of  the 
Commissioner. 

Certificate- 
Section  29.  Upon  the  final  determination  of  the  rights  to 
the  waters  of  any  stream,  it  shall  be  the  duty  of  the  Commissioner 
to  issue  to  each  person,  association  or  corporation  represented  in 
such  determination  a  certificate  to  be  signed  by  the  Commis- 
sioner and  attested  under  his  seal,  setting  forth  the  name  and 
postoffice  address  of  the  owner  of  the  right;  the  priority  of  date 
and  the  extent  and  purpose  of  such  right;  and  if  such  water  be 
for  irrigation  purposes,  a  description  of  the  legal  subdivisions  of 
land  to  which  said  water  is  appurtenant,  such  certificate  shall  be 
transmitted  by  the  Commissioner  in  person  or  by  registered  mail 
to  the  county  recorder  of  the  county  in  which  such  right  is 
located,  and  it  shall  be  the  duty  of  the  county  recorder  upon 
receipt  of  the  recording  fee  of  $2.00  collected  as  hereinbefore 
provided,  to  record  the  same  in  a  book  especially  prepared  and 
kept  for  that  purpose,  and  thereupon  immediately  transmit  the 
certificates  to  the  respective  owners.  [As  amended  1921.] 

Re -Hearing- 
Section  30.  Within  six  months  from  the  date  of  the  decree 
of  the  Court  determining  the  rights  upon  any  stream,  the  Com- 
missioner or  any  party  interested  may  apply  to  the  Court  for  a 
rehearing  upon  grounds  to  be  stated  in  the  application.  There- 
upon, if  in  the  discretion  of  the  court  it  shall  appear  that  there 
are  good  grounds  for  rehearing,  the  Court  shall  make  an  order 
fixing  a  time  when  such  application  shall  be  heard.  The  clerk 
of  the  Court  shall,  at  the  expense  of  the  petitioner,  forthwith 
mail  written  notice  of  said  application  to  the  Commissioner  and 
to  every  party  interested,  and  state  in  such  notice  the  time  and 
place  when  such  application  will  be  heard. 

Determination — When  Conclusive — 

Section  31.  The  Determination  of  the  Commissioner  as  con- 
firmed or  modified  as  provided  by  this  act  in  proceedings  shall 
be  conclusive  as  to  all  prior  rights  and  the  rights  of  all  existing 
claimants  upon  the  stream  or  other  body  of  water  lawfully  em- 
braced in  the  determination. 

Intervention — 

Section  32.  Whenever  proceedings  shall  be  instituted  for  the 
determination  of  the  rights  to  the  use  of  any  water,  it  shall  be  the 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  15 

duty  of  all  claimants  interested  therein  to  appear  and  submit 
proof  of  their  respective  claims  at  the  time  and  in  the  manner 
required  by  law;  and  any  such  claimant  who  shall  fail  to  appear 
in  such  proceedings  and  submit  proof  of  his  claims  shall  be  barred 
and  estopped  from  subsequently  asserting  any  right  theretofore 
acquired  upon  the  stream  or  other  body  of  water  embraced  in 
such  proceedings,  and  shall  be  held  to  have  forfeited  all  rights  to 
the  use  of  said  water  theretofore  claimed  by  him.  Any  person, 
association  or  corporation  interested  in  the  water  of  any  stream 
upon  whom  or  which  no  service  of  notice  shall  have  been  had  of 
the  pendency  of  proceedings  for  the  determination  of  the  rights 
to  the  use  of  the  water  of  said  stream,  and  who  or  which  shall 
have  no  actual  knowledge  or  notice  of  the  pendency  of  said  pro- 
ceedings, may  at  any  time  prior  to  the  expiration  of  one  year 
after  the  entry  of  the  determination  of  the  Commissioner  file  a 
petition  to  intervene  in  said  proceedings.  Such  petition  shall 
contain,  among  other  things,  all  matters  required  by  this  act, 
of  claimants  who  have  been  duly  served  with  notice  of  said 
proceedings  and  also  a  statement  that  the  intervenor  had  not 
actual  knowledge  or  notice  of  the  pendency  of  said  proceedings. 
Upon  the  filing  of  said  petition  in  intervention,  the  petitioner 
shall  be  allowed  to  intervene  upon  such  terms  as  may  be  equitable 
and  thereafter  shall  have  all  rights  vouchsafed  by  this  act  to 
claimants  who  have  been  duly  served. 

Preparing  Record  for  Inspection- 
Section  33.  Whenever  the  rights  to  the  waters  of  any  stream 
have  been  determined  as  herein  provided,  and  it  shall  appear 
by  the  record  of  such  determination  that  it  had  not  been  at  one 
and  the  same  proceeding,  then  in  such  case  the  Commissioner 
may  open  to  public  inspection,  all  proofs  and  evidence  of  rights 
to  the  water,  and  his  finding  in  relation  thereto  in  the  manner 
provided  in  Section  22;  and  any  person,  corporation,  or  associa- 
tion who  may  desire  to  contest  the  claims  or  rights  of  other  per- 
sons, corporations  or  associations,  as  set  forth  in  the  proofs  or 
established  by  the  Commissioner  shall  proceed  in  the  manner 
provided  for  in  Sections  23  and  24;  provided,  that  contests  may 
not  be  entered  into  and  shall  not  be  maintained  except  between 
claimants  who  were  not  parties  to  the  same  adjudication  pro- 
ceedings in  the  original  hearings. 

Water  Districts- 
Section  34.     The  Commissioner  shall  divide  the  State  into 
water  districts  with  due  reference  to  drainage  watersheds,  said 
water  districts  to  be  so  constituted  as  to  secure  the  best  protection 


16  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

to  the  claimants  for  water  and  the  most  economical  supervision 
on  the  part  of  the  State ;  said  water  districts  shall  not  be  created 
until  a  necessity  therefor  shall  arise  but  shall  be  created  from  time 
to  time  as  the  claims  thereof  from  the  streams  of  the  State  shall 
be  determined.  [As  amended  1921.] 

WATER  SUPERINTENDENT  APPOINTED 

Section  35.  There  shall  be  appointed  by  the  Commissioner 
one  water  superintendent  for  each  water  district.  Each  water 
superintendent  shall  take  and  subscribe  to  an  oath  to  support 
the  provisions  of  this  act  and  to  fulfil  the  orders  of  the  Com- 
missioner. He  shall  hold  his  office  until  his  successor  is  appointed 
and  qualifies,  and  the  Commissioner  shall  by  like  selection  and 
appointment  fill  all  vacancies  which  shall  occur  in  the  office  of 
water  superintendent.  Each  water  superintendent  shall  receive 
such  compensation  as  the  Commissioner  shall  direct,  such  com- 
pensation to  be  paid  by  the  water  users  in  the  respective  districts. 
Each  water  superintendent  shall  keep  a  true  and  just  account  of 
the  time  spent  by  him  and  his  assistants  in  the  duties  of  each 
count}^  respectively  in  which  his  duties  may  extend  and  he  shall 
present  a  true  copy  thereof  verified  by  oath  to  the  Superior  Court 
of  each  county  at  the  end  of  each  month,  whereupon  the  judge  of 
the  Superior  Court  shall  order  the  same  paid,  according  to  such 
a  distribution  of  the  amount  among  the  water  users  as  the  judge 
shall  deem  equitable. 

Duties  of  Water  Superintendent — 

Section  36.  It  shall  be  the  duty  of  each  said  water  Super- 
intendent to  divide  the  water  of  the  natural  streams  or  other 
sources  of  supply  of  his  district  among  the  several  ditches  and 
reservoirs  taking  water  therefrom,  and  among  the  laterals  and 
ditches  according  to  the  rights  of  each  respectively  in  whole  or 
in  part,  and  to  shut  and  fasten,  or  cause  to  be  shut  and  fastened, 
the  head  gates  of  ditches,  and  shall  regulate  or  cause  to  be  regu- 
lated, the  controlling  works  of  reservoirs,  in  time  of  scarcity  of 
water,  as  may  be  necessary  by  reason  of  the  rights  existing  from 
said  streams  of  his  district.  The  water  superintendent  shall  have 
authority  to  regulate  the  distribution  of  water  among  the  various 
users  under  any  partnership  ditch  or  reservoir  where  rights  have 
been  determined,  in  accordance  with  existing  decrees.  When- 
ever, in  this  pursuance  of  his  duties,  the  water  superintendent 
regulates  a  head  gate  to  a  ditch  or  the  controlling  works  of 
reservoirs,  it  shall  be  his  duty  to  attach  to  such  head  gate  or  con- 
trolling works,  a  written  notice  properly  dated  and  signed,  setting 
forth  the  facts  that  such  head  gate  or  controlling  works  has  been 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  17 

properly  regulated  and  is  wholly  under  his  control,  and  such 
notice  shall  be  legal  notice  to  all  parties  interested  in  the  division 
and  distribution  of  the  water  of  such  ditch  or  reservoir.  It  shall 
be  the  duty  of  the  county  attorney  to  appear  for  or  on  behalf 
of  the  water  superintendent  in  any  case  which  may  arise  in  the 
pursuance  of  the  official  duties  of  any  such  officer  within  the 
jurisdiction  of  said  County  Attorney. 

Right  of  Appeal- 
Section  37.  Said  Water  Superintendents  shall,  as  near  as  may 
be,  divide,  regulate  and  control  the  use  of  the  water  of  all  streams 
within  their  districts  by  such  closing  or  partially  closing  of  the 
head  gates  as  will  prevent  the  waste  of  water,  or  its  use  in  excess 
of  the  volume  to  which  the  owner  of  the  right  is  lawfully  entitled, 
and  any  person  who  may  be  injured  by  the  action  of  any  water 
superintendent  shall  have  the  right  to  appeal  to  the  Superior 
Court  of  the  county  for  an  injunction.  Such  injunction  shall 
only  be  issued  in  case  it  can  be  shown  at  the  hearing  that  the 
water  superintendent  has  failed  to  carry  into  effect  the  order  of 
the  Commissioner  or  decrees  of  the  Court  determining  the  existing 
rights  to  the  use  of  water. 

Assistant  Superintendents — 

Section  38.  Said  water  superintendent  shall  have  power,  in 
case  of  need,  to  employ  suitable  assistants  to  aid  him  in  the  dis- 
charge of  his  duties.  Such  assistants  shall  take  the  same  oath 
as  the  water  superintendent,  and  shall  obey  his  instructions,  and 
each  shall  be  entitled  to  such  compensation  per  diem  as  the 
Commissioner  shall  have  fixed  for  such  cases.  Payment  for  such 
services  is  to  be  made  upon  certificates  of  the  superintendent  in 
the  same  manner  as  provided  for  the  payment  of  the  water 
superintendent  himself. 

Water  Lawfully  Denied— 

Section  39.  Any  person  who  shall  wilfully  open,  close,  change 
or  interfere  with  any  lawfully  established  head  gate,  measuring 
device,  or  water  box  without  authority,  or  who  shall  wilfully  use 
water  or  conduct  water  into  or  through  his  ditch  which  has  been 
lawfully  denied  him  by  the  water  superintendent  or  other  compe- 
tent authority,  shall  be  deemed  guilty  of  a  misdemeanor.  The 
possession  or  use  of  water  when  the  same  shall  have  been  lawfully 
denied  by  the  water  superintendent  of  other  competent  authority, 
shall  be  prima  facie  evidence  of  the  guilt  of  the  person  using  it. 

Power  to  Arrest- 
Section  40.     The  water  superintendent  or  his  assistants  within 


18  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

his  district,  shall  have  power  to  arrest  any  person  or  persons 
violating  any  of  the  provisions  of  this  act  and  turn  them  over 
to  the  Sheriff  or  other  competent  police  officer  within  the  county; 
and  upon  delivering  any  such  person  so  arrested  into  the  custody 
of  the  sheriff  it  shall  be  the  duty  of  the  water  superintendent  or 
assistant  making  such  arrest  to  immediately,  in  writing  and  upon 
oath,  make  complaint  before  the  proper  justice  of  the  peace 
against  the  person  so  arrested. 

DUTIES  OF  CANAL  OWNERS,  ETC. 

Section  41.  The  owner  or  owners  of  any  ditch  or  canal  shall 
maintain  a  substantial  head  gate  at  the  point  where  the  water 
is  diverted,  which  shall  be  of  such  construction  that  it  can  be 
locked  and  kept  closed  by  the  water  superintendent;  and  such 
owners  shall  construct  and  maintain  when  required  by  the  Com- 
missioner suitable  measuring  devices  at  such  points  along  such 
ditch  as  may  be  necessary  for  the  purpose  of  assisting  the  water 
superintendent  in  determining  the  amount  of  water  that  is  to  be 
diverted  into  said  ditch  from  the  stream,  or  taken  away  from  it 
by  the  various  users.  Any  and  every  owner  or  manager  of  a 
reservoir,  located  across  or  upon  the  bed  of  a  natural  stream, 
shall  be  required  to  construct  and  maintain,  when  required  by 
the  Commissioner,  a  measuring  device  of  a  plan  to  be  approved 
by  the  Commissioner  below  such  reservoir,  a  gage  graduated  to 
feet  and  tenths  of  feet  inside  the  reservoir,  together  with  capacity 
table  for  same;  and  if  necessary  a  measuring  device  above  such 
reservoir  on  each  stream  or  source  of  supply  discharging  into  such 
reservoir,  for  the  purpose  of  assisting  the  water  superintendent  in 
determining  the  amount  of  water  to  which  appropriators  are 
entit  ed  and  thereafter  diverting  it  for  such  appropriator's  use. 
When  it  may  be  necessary  for  the  protection  of  other  water 
users,  the  Commissioner  may  require  flumes  to  be  installed  along 
the  line  of  any  ditch.  If  any  such  owner  or  owners  of  irrigation  * 
works  shall  refuse  or  neglect  to  construct  and  put  in  such  head 
gates,  flumes,  or  measuring  devices  after  twenty  days  notice, 
the  Commissioner  may  close  such  ditch  and  the  same  shall  not 
be  opened  or  any  water  diverted  from  the  source  of  supply, 
under  the  penalties  prescribed  by  law  for  the  opening  of  head 
gates  lawfully  closed  until  the  requirements  of  the  Commissioner 
as  to  such  head  gate,  flumes  or  measuring  device  have  been 
complied  with,  and  if  any  owner  or  manager  of  a  reservoir  located 
across  the  bed  of  a  natural  stream  shall  neglect  to  put  in  such 
measuring  device  after  twenty  days'  notice,  the  said  Commis- 
sioner may  open  the  sluice  gate  or  outlet  of  such  reservoir  and 
the  same  shall  not  be  closed  under  penalties  of  the  law  for  chang- 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  19 

ing  or  interfering  with  head  gates,  until  such  measuring  devices 
are  installed.     [As  amended  1921.] 

INSPECTION  OF  DAMS 

Section  42.  Before  the  beginning  of  construction  of  a  storage 
dam  whose  maximum  height  is  to  be  ten  feet  or  more,  or  one 
which  will  impound  fifty  acre  feet  or  more  of  water,  the  owner 
shall  present  complete  plans  of  same  to  the  Commissioner  for  his 
approval,  and  construction  shall  not  commence  until  such  ap- 
proval shall  be  received  in  writing.  Under  no  circumstances 
shall  water  be  stored  in  such  a  reservoir  until  the  dam  as  con- 
structed shall  have  been  accepted  by  the  Commissioner.  The 
violation  of  this  clause  shall  be  considered  a  misdemeanor. 

The  Commissioner  shall  have  authority  to  examine  any  dam, 
authorized  under  the  provisions  of  this  act  or  any  ditch,  canal, 
obstruction,  diversion,  or  other  work,  and  shall  have  authority 
to  examine  and  inspect  said  dam  or  other  work  during  con- 
struction; and  at  the  time  of  such  examination  or  inspection,  or 
thereafter,  the  Commissioner  shall  notify  in  writing  the  parties 
constructing  or  owning  such  dam  or  other  works,  of  any  addition 
or  alteration  which  he  considers  necessary  for  the  security  of 
the  work  or  the  safety  of  .the  public  or  of  any  person  or  persons 
residing  on  or  owning  land  in  the  vicinity  or  below  such  works, 
or  for  the  safety  of  their  property,  even  to  the  extent  of  requiring 
the  lowering  of  the  water  line.  Failure  to  comply  with  the  Com- 
missioner's instructions  shall  be  considered  a  misdemeanor.  [As 
amended  1921.] 

Application  for  Inspection — 

Section  43.  No  storage  dam  shall  be  constructed,  the  capacity 
of  whose  outlet  is  not  large  enough  to  pass  the  normal  flow  of  the 
stream  on  which  the  dam  is  located. 

Should  any  person  or  persons  residing  on  or  owning  land  in 
the  neighborhood  of  any  irrigation  works  after  completion,  or  in 
the  course  of  construction,  apply  to  the  Commissioner  in  writing 
desiring  an  inspection  of  such  works  the  Commissioner  may  order 
an  inspection  thereof.  Before  doing  so  he  may  require  the 
applicant  for  such  inspection  to  make  a  deposit  of  a  sum  of  money 
sufficient  to  pay  the  expenses  of  an  inspection,  and  in  case  the 
application  appears  to  said  Commissioner  not  to  have  been  justi- 
fied, he  may  cause  the  whole  or  part  of  such  expense  to  be  paid 
out  of  such  deposit.  In  case  the  application  appears  to  the 
Commissioner  to  have  been  justified,  he  may  require  the  owner 
of  the  works  to  pay  the  whole  or  any  part  of  the  expenses  of  the 
inspection,  and  the  same  shall  constitute  a  valid  lien  against  the 


20  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

works,  which  may  be  enforced  in  the  same  manner  as  provided 
for  the  enforcement  of  mechanics'  liens.     [As  amended  1921.] 

USE  OF  BED  OF  STREAM  AS  CARRIER 

•  Section  44.  Whenever  the  owner,  manager  or  lessee  of  a 
reservoir,  constructed  under  the  provisions  of  this  act,  shall 
desire  to  use  the  bed  of  a  stream,  or  other  watercourse,  for  the 
purpose  of  carrying  stored  or  impounded  water  from  the  reservoir 
to  the  consumer  thereof,  he  shall  in  writing,  notify  the  water 
superintendent  of  the  district  in  which  the  stored  or  impounded 
waters  are  to  be  used,  giving  the  date  when  it  is  desired  to  dis- 
charge water  from  such  reservoir,  its  volume,  and  the  names  of 
all  persons  and  ditches  entitled  to  its  use.  It  shall  then  be  the 
duty  of  such  water  superintendent  to  supervise  the  opening  of 
such  reservoir  gates  and  to  close  or  to  so  adjust  the  head  gates 
of  all  ditches  from  the  stream  of  water  courses,  not  entitled  to 
the  use  of  such  stored  water,  as  will  enable  those  having  the  right 
to  secure  the  volume  to  which  they  are  entitled. 

DISAGREEMENT  OF  WATER  USERS 

Section  45.  Whenever  any  water  users  from  any  ditch  or 
reservoir,  are  unable  to  agree  relative  to  the  distribution  or 
division  of  water  through  or  from  said  ditch  or  reservoir,  it  shall 
be  lawful  for  such  water  users  to  apply  to  the  water  superin- 
tendent of  the  district  in  which  said  ditch  or  reservoir  is  located, 
by  written  notice,  setting  forth  such  facts,  asking  the  water 
superintendent  to  regulate  such  ditch  or  reservoir  for  the  purpose 
of  making  a  just  division  or  distribution  of  water  from  the  same 
to  the  parties  entitled  to  the  use  thereof.  The  judge  of  any 
Superior  Court  may  also  direct  the  water  superintendent  of  the 
district  to  take  charge  of  and  enforce  any  decree  relative  to  water 
rights  made  under  the  jurisdiction  of  said  Court  pending  a  deter- 
mination of  all  the  water  rights  of  the  watershed.  Upon  receiving 
such  order,  the  said  water  superintendent  shall  regulate  such  di-tch 
or  reservoir  for  the  purpose  of  dividing  or  distributing  the  water 
therefrom  in  accordance  with  the  established  rights  Continuing 
the  said  work  until  the  necessity  therefor  shall  cease  to  exist. 
Said  rights  shall  be  deemed  to  have  been  established  when  the 
same  have  been  determined  by  the  Commissioner,  by  any  decree 
of  any  Superior  Court  of  this  State  or  by  contract  or  other  written 
agreement. 

USE  BY  ROTATION 

Section  46.  To  bring  about  a  more  economical  use  of  the 
available  water  supply,  it  shall  be  lawful  for  water  users  owning 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  21 

lands  which  have  attached  water  rights,  to  rotate  in  the  use  of 
supply  to  which  they  may  be  collectively  entitled,  and  whenever 
two  or  more  water  users  shall  notify  the  water  superintendent 
that  they  desire  to  use  the  water  by  rotation  and  shall  present  a 
written  agreement  as  to  the  manner  of  such  rotation,  the  water 
superintendent  shall  distribute  the  water  in  accordance  with  such 
written  agreement. 

INJUNCTIONS 

Section  47.  In  suits  for  injunction  affecting  the  use  of  water 
from  streams  upon  which  the  rights  to  use  water  have  been 
determined,  no  restraining  order  shall  be  granted  before  hearing 
had  after  at  least  ten  days'  notice  thereof  served  upon  all  persons 
defendant.  All  suits  for  injunction  involving  the  use  of  water 
shall  be  heard,  either  in  term  time  or  during  vacation,  not  later 
than  fifteen  days  after  issues  joined,  unless  for  good  cause  shown 
further  time  be  allowed. 

TRANSFER  OF  WATER  RIGHT 

Section  48.  All  water  used  in  this  State  for  irrigation  pur- 
poses shall  remain  appurtenant  to  the  land  upon  which  it  is  used; 
provided,  that  if  for  any  natural  cause  beyond  control  of  the 
owners  it  should  at  any  time  become  impracticable  to  bene- 
ficially or  economically  use  water  for  irrigation  of  any  land  to 
which  water  is  appurtenant,  said  right  may  be  severed  from  said 
land,  and  simultaneously  transferred  and  become  appurtenant  to 
other  land,  without  losing  priority  of  right  theretofore  estab- 
lished, if  such  change  can  be  made  without  detriment  to  existing 
rights,  on  the  approval  of  an  application  of  the  owner  to  the 
Commissioner.  Before  the  approval  of  such  transfer  an  inspec- 
tion shall  be  made  by  the  Commissioner  or  persons  deputized  by 
him,  and  the  Commissioner  shall  approve  or  disapprove  such 
transfer  and  prescribe  the  conditions  therefor.  Such  order  shall 
be  subject  to  appeal  as  in  this  act  provided.  [As  amended  1921.] 

MISDEMEANOR 

Section  49.  The  unauthorized  use  of  water  to  which  another 
person  is  entitled,  or  the  unauthorized  diversion  of  water  from 
a  stream,  or  the  wilful  waste  of  water  to  the  detriment  of  another, 
or  the  diversion  of  a  stream  to  the  injury  or  threatened  injury 
of  the  lands  of  another  shall  be  a  misdemeanor  and  the  possession 
or  such  use  of  water  shall  be  prima  facie  evidence  of  the  guilt 
of  the  person  using  it.  It  shall  also  be  a  misdemeanor  to  use, 
store,  or  divert  any  water  until  after  the  issuance  of  permit  to 
appropriate  such  waters. 


22  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

Misdemeanor — 

Section  50.  Whenever  any  appropriator  of  water  has  the 
lawful  right  of  way  for  the  storage,  diversion  or  carriage  of 
water,  it  shall  be  unlawful  to  place  or  maintain  any  obstruction 
that  shall  interfere  with  the  use  of  the  works,  or  prevent  con- 
venient access  thereto.  Any  violation  of  the  provisions  of  this 
Section  shall  be  a  misdemeanor. 

FEES 

Section  51.  The  following  fees  shall  be  collected  by  the 
Commissioner  in  advance  and  be  paid  by  him  into  the  State 
Water  Fund  of  the  State  Treasury  on  the  last  day  of  each  month. 

1.  For  examining  an  application  for  permit  to  appropriate 
water,  $3.00. 

2.  For  filing  and  recording  permit  to  appropriate  water  for 
irrigation  purposes,  twelve  cents  per  acre  for  each  acre  to  be 
irrigated  up  to  and  including  one  hundred  acres,  and  ten  cents 
per  acre  for  each  acre  in  excess  of  one  hundred  acres,  or  in  case 
the  application  is  for  power  purposes,  twenty-five  cents  for  each 
theoretical  horsepower  to  be  developed  up  to  and  including  one 
hundred,  and  ten  cents  for  each  horsepower  in  excess  of  one 
hundred  and  up  to  and  including  one  thousand,  and  five  cents 
for  each  horse  power  in  excess  of  one  thousand;  or  in  case  the 
application  is  for  any  other  purpose,  $5.00  for  filing  and  recording 
each  permit. 

3.  For  filing  or  recording  any  other  water  right  instrument, 
$1.00  for  the  first  hundred  words  and  ten  cents  for  each  additional 
hundred  words  or  fraction  thereof. 

4.  For  making  copy  of  any  document  recorded  or  filed  in 
his  office,  ten  cents  for  each  hundred  words  or  fraction  thereof; 
but  where  the  amount  exceeds  $5.00,  then  only  the  actual  cost 
in  excess  of  that  amount  shall  be  charged. 

5.  For  certifying  copies,  documents,  records,  or  maps,  $1.00 
for  each  certificate. 

6.  For  blue  print  copy  of  any  map  or  drawing,  ten  cents  per 
square  foot  or  fraction  thereof.     For  such  other  work  as  may  be 
required  of  his  office,  actual  cost  of  the  work.     [As  amended  1921.] 

METHOD  OF  APPEAL 

Section  52.  The  decisions  of  the  Commissioner  shall  be  sub- 
ject to  appeal  to  the  Court,  as  heretofore  prescribed,  which  appeal 
shall  be  governed  by  the  practice  of  suits  in  equity,  unless  other- 
wise provided  herein. 


WATER    CODE    OF    THE    STATE    OF    ARIZONA  Jo 

Oaths,  Subpoena,  Etc.— 

Section  53.  The  Commissioner  may  administer  oaths,  cer- 
tify official  acts,  subpoena  witnesses,  issue  subpoenas  duces  tecum 
for  the  production  of  books,  papers,  drawings  and  documents, 
in  the  manner  and  with  like  powers  as  those  provided  for  the 
corporation  commission  in  the  performance  of  their  official  duties. 
[As  amended  1921.] 

APPROPRIATION 

Section  54.  There  is  hereby  appropriated  out  of  any  moneys 
in  the  general  fund  of  the  State  Treasury  not  otherwise  appro- 
priated, the  sum  of  $15,000.00  annually,  or  so  much  thereof  as 
may  be  necessary  for  the  payment  of  the  salaries  and  expenses 
incurred  under  the*  provisions  of  this  act.  And  there  is  hereby 
appropriated  out  of  the  General  Fund  of  the  State  Treasury 
for  the  year  1919-20  a  special  fund  of  $10,000.00  for  the  purpose 
of  collecting  data  for  the  adjudication  of  the  Gila  River,  exclusive 
of  the  Salt  River,  such  sum  to  be  the  basis  of  a  revolving  fund 
to  be  used  consecutively  in  the  adjudication  of  the  water  sheds 
of  the  State.  These  moneys  shall  be  paid  into  the  State  Water 
Fund. 

ATTORNEY-GENERAL 

Section  55.  The  Attorney  General  shall  be  the  legal  advisor 
of  the  Commissioner  in  all  matters  appertaining  to  the  operation 
of  this  act,  and  shall  perform  any  and  all  legal  duties  necessary 
in  connection  with  this  work  without  other  compensation  than 
his  salary  as  fixed  by  law. 

VESTED  AND  DECREED  RIGHTS 

Section  56.  Nothing  in  this  act  contained,  shall  impair  the 
vested  rights  of  any  person,  association  or  corporation  to  the 
use  of  water. 

Nor  shall  anything  in  this  act  contained,  affect  relative  prior- 
ities to  the  use  of  water  between  or  among  parties  to  any  decree 
of  the  courts  rendered  in  causes  determined  or  pending  prior  to 
the  taking  effect  of  this  act. 

Nor  shall  the  right  of  any  person,  association  or  corporation 
to  take  and  use  water  be  impaired  or  affected  by  any  of  the 
provisions  of  this  act  where  appropriations  have  been  initiated 
prior  to  the  filing  of  this  act  in  compliance  with  laws  then  exist- 
ing, and  such  appropriators,  their  heirs,  successors  or  assigns 
shall,  in  good  faith  and  in  compliance  with  the  laws  existing  at 
the  time  of  the  filing  of  this  act  in  the  office  of  the  Secretary  of 
State,  commence  the  construction  of  works  for  the  application 


24  WATER    CODE    OF    THE    STATE    OF    ARIZONA 

of  the  water  so  appropriated  to  a  beneficial  use  and  thereafter 
prosecute  such  work  diligently  and  continuously  to  completion, 
but  all  such  rights  shall  be  adjudicated  in  the  manner  provided 
in  this  act. 

PENALTY 

Section  57.  All  violations  of  the  provisions  of  this  act,  de- 
clared herein  to  be  misdemeanors,  shall  be  punished  by  a  fine  not 
exceeding  $250.00  nor  less  than  $10.00,  or  by  imprisonment  in 
the  county  jail,  not  exceeding  six  months,  or  by  both  such  fine 
and  imprisonment. 

EMINENT  DOMAIN 

Section  58.  Nothing  herein  contained  shall  be  construed  to 
deprive  the  State  or  any  City,  municipal  water  district,  irrigation 
district,  or  political  subdivision  of  the  State  or  any  person,  com- 
pany or  corporation,  of  any  rights  which  under  the  law  of  this 
State  they  may  have,  to  acquire  property  by  or  through  eminent 
domain  proceedings. 

BIENNIALLY  REPORT 

Section  59.  The  Commissioner  shall  prepare  and  render  to 
the  Governor,  biennially,  and  oftener  if  required,  full  and  true 
reports  of  his  work  relating  to  the  matters  and  duties  devolving 
upon  him  by  virtue  of  his  office,  which  biennial  report  shall  be 
delivered  to  the  Governor,  on  or  before  the  31st  day  of  De- 
cember of  the  year  preceding  the  regular  sessions  of  the  Legis- 
lature. In  these  reports  he  shall  include  such  suggestions  as  to 
the  amendments  of  existing  laws  or  the  necessity  for  new  laws  as 
his  information  and  experience  in  office  shall  suggest.  [As 
amended  1921.] 

Section  60.  All  acts  and  parts  of  acts  in  conflict  herewith  are 
hereby  repealed. 

Section  61.  If  any  section,  subsection,  sentence,  clause  or 
phrase  of  this  act  is  for  any  reason  held  to  be  unconstitutional 
such  decision  shall  not  affect  the  validity  of  the  remaining  por- 
tions of  this  act. 

Section  62.  This  act  shall  be  known  as  the  State  Water 
Code  Act. 

"This  Bill  having  remained  with  the  Governor  ten  days, 
Sundays  excluded,  after  the  final  adjournment  of  the  legislature, 
and  not  having  been  filed  with  his  objections,  has  become  a  law 
this  26th  day  of  March,  1919." 

(Signed)     MIT  SIMMS, 

Secretary  of  State. 


